Governor’s legislation is likely unconstitutional

ON JULY 24, the Massachusetts Supreme Judicial Court issued its decision in the case of Lunn v. Commonwealth, holding that Massachusetts law enforcement officers lack authority to hold individuals on the sole strength of a federal immigration detainer. In response, Gov. Charlie Baker filed legislation to allow Massachusetts law enforcement officers to detain targets of federal deportation action without a warrant or probable cause. Baker is showing once again that while he pays minimal lip service opposing President Trump’s agenda, he continues to take real steps to enact it here in Massachusetts. Last month, he tried to make Massachusetts the first state to roll back the Medicaid expansion; this month, he wants to use state resources to support President Trump’s deportation machine.

Baker’s bill undermines safety in our communities by sanctioning state and local police officers’ active participation in federal immigration enforcement. It siphons state and local resources to carry out what is the federal government’s responsibility, and discourages immigrants and their families from contacting the police when they have been victims of a crime or have knowledge about a crime.

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The governor’s legislation would, in effect, enact President Trump’s plan to expand the scope of who will be detained and deported here in Massachusetts. Baker claims his legislation is limited to violent offenders but in practice his bill would allow the detention of people that the police would otherwise have no justification to keep in custody. The bill’s broad grant of authority would undoubtedly sweep US citizens and those with green cards into unlawful detention. With this legislation, Baker says those with minor crimes from years ago can and should be targeted for deportation. We believe that no one should be torn from their families and their homes for a minor mistake.

What’s more, Baker’s legislation is likely unconstitutional. The US and Massachusetts Constitutions are clear that police officers may not arrest individuals without either an arrest warrant or probable cause that they have committed a crime. As the Supreme Court explained in 2012, being present in the United States without documentation is a federal civil, not criminal, infraction. Lower federal courts have recognized this truism and have ruled that holding a citizen based solely on an ICE detainer violates the Fourth Amendment. As was the result in those cases, authorizing unconstitutional arrests could expose the Commonwealth to potentially millions of dollars in legal liability.

Instead of doubling down on deportations that will break up families and disrupt communities, we should focus on making Massachusetts safer and stand up to President Trump’s hateful rhetoric. While the Lunn decision insulates Massachusetts from the unconstitutional actions of the federal government, there is more that we can do to support members of our communities. We support action on the other aspects of the Safe Communities Act, filed by Rep. Juana Matias and Sen. Jamie Eldridge, including prohibiting state support for any Muslim registry, ensuring due process for immigrants detained in Massachusetts facilities, and preventing collaborative “287(g)” agreements that deputize local police and sheriffs as deportation agents at the state taxpayer’s expense. We also support a bill filed by Rep. Antonio Cabral that would specifically prevent the use of state dollars on existing “287(g)” agreements with sheriffs and the state Department of Correction.

Massachusetts has a history of standing up to injustices pursued by the federal government. In 1850, Congress passed the Fugitive Slave Act, which required the cooperation of officials in free states. But Massachusetts responded with legislation penalizing state officials who assisted in the capture of individuals claimed to be fugitive slaves. As in those times, Massachusetts has a choice – either we stand up for the constitutional rights of all, or we go along with Baker’s slovenly indifference to the rule of law.

Byron Rushing, Denise Provost, Mike Connolly, and Antonio Cabral are all state representatives in the Massachusetts Legislature.